State v. Ladely, 42499

• Decision Date: 03 May 1973
• Docket Number: No. 42499,42499
• Citation: 82 Wn.2d 172,509 P.2d 658
• Parties: STATE of Washington, Respondent, v. David Francis LADELY, Appellant.
• Court: Washington Supreme Court

Page 172

82 Wn.2d 172

509 P.2d 658

STATE of Washington, Respondent, v. David Francis LADELY, Appellant.

No. 42499.

Supreme Court of Washington, En Banc.

May 3, 1973.

John A. Strait, Staff Atty., Seattle, for appellant.

Christopher T. Bayler, King County Pros. Atty., Christopher J. Bell, Deputy Pros. Atty., Seattle, for respondent.

WRIGHT, Associate Justice.

Appellant appeals herein and raises two questions. Was there sufficient evidence to support a conviction of the crime of grand larceny by receiving and concealing stolen property? May a prosecution for that crime be instituted more than three years after the original stealing? We answer both in the affirmative.

Detective William K. Rauschmier of the Seattle Police Department went to appellant's residence on April 24, 1971 in response to a complaint by appellant that a burglary had been committed. During the investigation of the alleged burglary, an individual was mentioned as a possible suspect. Appellant stated if that suspect had committed the crime he would have taken an antique Walker Colt revolver. Appellant then showed the antique to the officer, who noted the serial number as No. 455. Upon returning to the police station Detective Rauschmier checked the records and found that particular antique revolver had been stolen during the burglary of an apartment in the city of Seattle on June 7, 1968.

A search warrant was obtained and Detective Rauschmier and several other Seattle police officers searched the appellant's residence. During the search several items were found, the antique revolver, a microscope which had been stolen from a doctor's office building, and two film canisters belonging to the Seattle Public Library. Appellant was arrested, and a charge of grand larceny under subsection (5) of RCW 9.54.010 was filed on June 8, 1971. The filing of the information was three years and one day after the original theft of the antique revolver.

Count I of the information related to the microscope. Upon trial the jury found appellant 'not guilty' on Count I. Count II related to the antique revolver. The jury found appellant 'guilty' on Count II. This appeal is concerned only with Count II.

RCW 9.54.010 reads:

Larceny. Every person who, with intent to deprive or defraud the owner thereof--

(1) Shall take, lead or drive away the property of another; or

(2) Shall obtain from the owner or another the possession of or title to any property, real or personal, by color or aid of any order for the payment or delivery of property or money or any check or draft, knowing that the maker or drawer of such order, check or draft was not authorized or entitled to make or draw the same, or by color or aid of any fraudulent or false representation, personation or pretense or by any false token or writing or by any trick, device, bunco game or fortune-telling; or

(3) Having any property in his possession, custody or control, as bailee, factor, pledgee, servant, attorney, agent, employee, trustee, executor, administrator, guardian or officer of any person, estate, association or corporation, or as a public officer, or a person authorized by agreement or by competent authority to take or hold such possession, custody or control, or as a finder thereof, shall secrete, withhold or appropriate the same to his own use or to the use of any person other than the true owner or person entitled thereto; or

(4) Having received any property by reason of a mistake, shall with knowledge of such mistake secrete, withhold or appropriate the same to his own use or to the use of any person other than the true owner or person entitled thereto; and

(5) Every person who, knowing the same to have been so appropriated, shall bring into this state, or buy, sell, receive or aid in concealing or withholding any property wrongfully appropriated, whether within or outside of this state, in such manner as to constitute larceny under the provisions of this chapter--

Steals such property and shall be guilty of larceny.

With regard to the first question, whether there was sufficient evidence to sustain a conviction, there are several essential elements under subsection (5) to constitute larceny. The only one of those elements in question here is 'knowing the same to have been so appropriated'. Appellant contends 'there was not sufficient evidence to prove guilty knowledge on the part of appellant, that the revolver in question was stolen property.'

The antique revolver was stolen property. In addition to that it was established that appellant told three different stories to police officers about his ownership and how he acquired the revolver. He also had the film canisters. They were obtained from the library by use of a library card belonging to one Kenneth Henshaw, the victim of the burglary in which the antique revolver had been stolen. The library card had been taken in the June 7, 1968 burglary.

The three stories were as follows. Appellant told Detective Rauschmier he had owned the antique revolver for some time and it was worth about one thousand dollars. He told Detective Patrick Dempsey, who was detaining him during the search, he had bought it from one Cobb Torrez within the past two weeks for one hundred dollars, but had no receipt. At trial, he testified he received the revolver from one George Zerneky on April 10, 1971, in exchange for an air compressor.

The argument that the act of showing the antique revolver to Detective Rauschmier was inconsistent with concealing it, is an argument which could properly be made to the jury. Although we do not have the arguments of counsel in the statement of facts, we do know that appellant was...